Beyond The Reach Of The Law

I told you that this was going to be a busy old week.

I have seen and read much utter crap in recent days about the Police use of RIPA against journalists as a ruse to smoke out their (journalists’) sources.

I can quite easily agree with the comments about ‘Dawn Raids’, I have long since thought they were not always necessary, and I’m absolutely certain that on some occasions it’s a tactic used purely to send a message, under other circumstances they may be vital. A balancing act, but the priority has to be securing the evidence, but Dawn Raids do not need to be the Norm, particularly for historical investigations.

The relationship between Press and Police has always been fragile and not destined to improve any time soon. I fear that this week it has descended to even lower levels with stories from Sean O’Neil (@TimesCrime) and the Beeb’s Danny Shaw (@DannyShawBBC).

Danny asks the question “Do Police Believe They Are Above The Law?”

Let me answer that, “No, I don’t believe that they do, nor are they and neither should they be”

My headline would be “Journalists and Politicians believe they should be above the law”

Let me be clear on this, NOBODY should be above the law or immune from investigation and prosecution.

Each Police Officer swears an oath similar to this;:

I (name) do solemnly and sincerely declare and affirm that I will well and truly serve our Sovereign Lady the Queen in the office of Constable, without favour or affection, malice or ill will; and that I will, to the best of my power, cause the peace to be kept and preserved, and prevent all offences against the persons and properties of Her Majesty’s subjects and that while I continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.

Nowhere in this oath does it mention journalists and politicians being exempt from investigation.

Each sworn constable is an independent legal official; they are not agents of the police force, PCC or government. Each police officer has personal liability for their actions or inaction.
Sir Richard Mayne’s 9 Principles include this one;
“5. To seek and preserve public favour, not by pandering to public opinion; but by constantly demonstrating absolutely
impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour; and by ready offering of individual sacrifice in protecting and preserving life.”
To the best of my knowledge the modern Police Service still follows these nine principles, which do not seem to include an exemption for Press and Politicians.

RIPA applies to a wide-range of investigations in which private information might be obtained. Cases in which it applies include:

terrorism
crime
public safety
emergency services

In a nutshell, broadly speaking, RIPA can be used by Police Officers investigating a CRIME

EVERY application for an authority under RIPA has to be recorded, submitted via Supervising Officers who will ensure that there are sufficient grounds for the authority to be granted.

RIPA does not give the Police, or any other Authority, powers to go on a ‘Fishing Expedition’ I.e. Let’s have a look at these journalists’ telephone records so that we can work out who their sources are. It MAY give Police powers to examine defined journalists’ telephone records in an attempt to identify who had unlawfully passed information to them. This must be an integral part of a criminal investigation.

The relevant Codes of Practice already contain these words of wisdom;

Collateral intrusion

3.8 Before authorising applications for directed or intrusive surveillance, the authorising officer should also take into account the risk of obtaining private information about persons who are not subjects of the surveillance or property interference activity (collateral intrusion).

3.9 Measures should be taken, wherever practicable, to avoid or minimise unnecessary intrusion into the privacy of those who are not the intended subjects of the surveillance activity. Where such collateral intrusion is unavoidable, the activities may still be authorised, provided this intrusion is considered proportionate to what is sought to be achieved. The same proportionality tests apply to the likelihood of collateral intrusion as to intrusion into the privacy of the intended subject of the surveillance.

3.10 All applications should therefore include an assessment of the risk of collateral intrusion and details of any measures taken to limit this, to enable the authorising officer fully to consider the proportionality of the proposed actions.

If the Police Officers conducting such criminal investigation are prevented from doing so if a journalist or politician are involved, a side-effect of this could possibly be that Police Officers unlawfully selling information to the media would escape detection and prosecution. What would the Press make of that?

A suitable analogy might be the relationship between a Police Officer and a Registered Informant (CHIS). If there were suspicions that they were enjoying a corrupt relationship would it be acceptable to say “we can’t investigate that, there’s an Informant involved. We can’t compromise the identity of the Informant”? I’m pretty sure that The Times and the Beeb would be all over that like a rash.

Surely the sensible approach would be that Police Officers should be allowed to investigate allegations of crime, regardless of who may be involved and if that results in journalists, politicians or Police Officers being arrested then so be it. Of the utmost importance in this process is that such investigations are necessary, proportionate, recorded and authorised at the appropriate level. WITHOUT FEAR OR FAVOUR.

Nobody should be beyond the reach of the law and immune from investigation, but those investigations must be carried out lawfully.

I hope that answers your question Danny.

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9 thoughts on “Beyond The Reach Of The Law

  1. One of the interesting things not mentioned in the press furore about the RIPA use on journalists is the apparent intent of the ‘intercepts’, which was obviously intended to identify police officers providing information to the press.
    There is no distinction by the hierarchy of the police between corrupt supply of secret information by police officers, and noble cause supply of information which should be in the public domain and is being suppressed by the establishment to protect themselves.
    The insidious spread of the use of the uncodified offence of ‘misconduct in public office’ to frighten police and other public officials from speaking out is an affront to free speech.
    For a free society officials should only keep secret what is truly necessary to be kept secret.

    • Are we indeed talking intercepts, or were they merely applications for Subscriber details and itemised bills? The Met in particular absolutely hates information getting out which they cannot control, even if it is harmless info in the Public Interest

  2. Dear Alan,
    Whilst I am not aware of any unlawful use of RIPA in relation to journalists or indeed any other suspects outside of the police service, I do have concerns as to how police services misuse this power towards its own colleagues.

    Whilst I appreciate police officers fitting up other police officers may not be of interest to the general public I think I should comment on my own experiences both personally and having represented and supported colleagues at employment tribunals.

    In my own case, whilst I have not yet reached that particular post in my blog (goodcopdown.wordpress.com), RIPA was misused against my wife and I as a result of a personal vendetta of a Deputy Chief Constable.

    This was as a result of whistleblowing to the HMIC which resulted in a focused inspection of the Professional Standards Department resulting in 12 recommendations being made.

    The DCC was embaressed not least because a previous HMIC inspection had been ignored and the crime figures were being manuipulated.

    The authorizing officer was an officer who I had already complained of within PSD, 2 of the PSD officers were actually officers I had previously supervised as their DS and had an axe to grind with me.

    There was not one jot of transparency in the whole process. The surveillance lasted 3 months, was used as part of a fishing expedition and the CPS decided to take no further action as there had been no offence committed.

    The manner of the surveillance became common knowledge whilst the 2 officers above used a control room in a shopping centre where they were able to use the 250 cameras within the shopping centre.

    This ultimately resulted in a business closing with a loss of 20 jobs and made my wife very ill.

    I had submitted an employment tribunal claim at this point due to my treatment being attributed to the whistleblowing.

    Not content with the damage already caused, a further operation was conducted against me. On this occasion, as it had previously been decided that no criminal offence was being committed and RIPA could not be used again, another form of surveillance was used known as an “Executive authority” which does not have any of the usual safeguards associated with a RIPA application.

    The same persons authorized the surveillance and the same PSD officers were involved despite complaints having been made concerning their previous conduct and various breaches of PACE.

    Examples of the complaints regarding the previous RIPA and search of my home address included seizing items that they were not entitled to, downloading the contents of a shared laptop that my wife and I used and then losing the downloaded information.
    Lo and behold, even the policy books which were kept in a locked safe within the offices of PSD disappeared.

    There were a catalogue of other concerns regarding this case however; just the attitude of the PSD officers was disgusting towards my wife and I and there was little or no respect for our property.

    The officers were eating bacon rolls and brought in take away coffee, one of which was spilt over the carpet.

    This was unprofessional but as I have alluded to in the past, the PSD are unaccountable and as police officers we have even less rights than a member of the public to challenge such behaviour.

    Moving on from my case, I have been involved in other cases where there has been similar conduct in other forces, this is a cultural problem, in one case an officer took an overdose whilst her home was being searched and we able to again identify that RIPA had

    Whilst I may have strayed a little from the topic of RIPA and journalists, it my own personal view that without proper oversight and proper accountability, I would not have trust and confidence in the police not abusing this power but I am likely to be biased having experienced the action of a few bad apples.

    Good Cop Down

    • Hi Julian,

      As I said in the post it’s a powerful and useful piece of legislation and must only be used in the correct manner and for the correct reasons, Police Discipline not being one of those reasons unless crime is alleged. It is noteworthy that the Met, amongst others, steadfastly refused to answer my FOI requests in relation to RIPA and Police Officers, so I am sure you’re correct in your concerns that thet Professional Standards maybe be abusing/misusing it.

  3. Yes, really good corrective summary. That must be how things are meant to work.

    People see so many stories about when these things don’t work though, it looks as if every single group – despite their praiseworthy founding principles – abuse the powers granted them.

    Worst are politicians, trumpeting how they fight for the interests, and try to represent the views, of their voters – despite the occasional ‘bad apple’.

    We were told only the occasional journalist listened to voice messages, only the occasional patient was given insufficient food or liquids, GCHQ only monitored private conversations lawfully, use of RIPA was only authorised legitimately, that only the meta-data was stored rather than content, only the occasional officer confused by the rules fiddled crime figures – HMIC still claims no, or hardly any, fiddling occurs or is intentional. We stupidly assumed no-one caring for children could have abused one or allowed others to, etc.

    The principles each group was inspired by may have initially justified trust in that group yet, if a group believes that trust leaves it free to push boundaries, take advantage & remain securely unexamined, it will eventually act this way, resist transparency yet see, understand & claim little is amiss – that their principles are still adhered to.

    Then we discover endless stories of MPs who gradually felt it was their ‘right’ to dip into the public purse, contributed in tax by their constituents, for expenses. They feel entitled to this ‘perk’ – many are still pissed off that it was questioned. Not the odd apple, maybe the majority?

    This at the same time that MPs were waiving through severe cuts to their most vulnerable constituents yet allowing grossly big pensions, ‘golden goodbyes’ & bonus cheques to be waved at bankers, as they sailed happily away from the devastation they appeared oblivious to.

    Between elections it’s clear that MPs & ministers, instead of fighting for the interests of ‘their’ public, very often do no such thing. Corporate party funders use their financial influence to distort democracy out of all recognition.

    It seems we can’t trust any group to police their own members, even the police.

    Until the HMIC challenge those, including their Home Office paymasters, who knowingly encouraged the fiddling of crime figures, rather than continue to deny fiddling occurred or that any was deliberate, we know nothing has changed.

    Until the fiddling is acknowledged, we see nothing can change. Until the fiddle-meisters are questioned, little HMIC say can be believed.

    Until transparency is enforced & monitored effectively, from outside each previously trustworthy ‘group’, why should we believe anything each habitually ‘nudges’ our way?

    The oaths or principles intended to inspire a group, the codes of practice, rules of engagement & even laws supposed to restrain a group, no longer suffice as explanation or justification once those at the helm or those pulling their strings with bonus or promotion bribes brazenly deny complicity or injustice.

    • Hi ideb8,

      Sadly, how it’s meant to work and how it is made to work are too often poles apart.

      The first two paragraphs of this guide to RIPA https://www.gov.uk/surveillance-and-counter-terrorism tell the man in the street MOST of what he/she needs to know, but the Codes of Practice for the practitioners are much more comprehensive. If used properly it is a very effective tool in the investigatory toolbox, but without proper (and constant) supervision it is very easy to misuse also.

      All applications for RIPA authorities, successful or otherwise, are logged and the original applications SHOULD be available for scrutiny by the Surveillance Commissioner.

  4. Hi, thx. Yes, I think your operative words of caution are

    “If used properly..”
    “proper (and constant) supervision”
    “very easy to misuse”
    “the original applications SHOULD be available for scrutiny”

    So the trouble is, this already utterly ConDemd govt. has over & over again shown it’s uninterested in & so unfit to, monitor the proper use of anything.

    As the originally apolitical use of ‘nudging’ was quickly superceded by its misuse for party political purposes, I for one no longer believe any of their reasssuring claims of propriety – esp. in relation to justice, safety, health or security.

    No aspect of government looks safe from the pressure & influence exerted away from democratic scrutiny by corporate party funders & the think-tanks they sponsor – still laughably awarded charity status.

    If cuts & pressure from the Home Office can so easily negate your words of caution, who will imagine the police top brass speak out to rebuff political, even party-political, interference?

    Who can have confidence now that reasonable privacy constraints are respected, that any member of the ‘establishment’ can’t have a subtle & oh so private word in the ear of BHH et al, leading to details of some child abuse campaigner becoming known perhaos or their family threatened, if otherwise that establishment figure might lose their unearned reputation?

    With no trusted privacy safeguards, with whistleblowers terrorised, with justice scrapped for many previously eligible for legal aid, with human rights scorned if invoked as a last resort via an EU court, with endlessly unanswered FOIs, who imagines those operative words of caution relate to anything real now – but may only be clothes we’re ‘persuaded’ an emporer must surely still be wearing, a hope-over-experience facade?

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